Lawsuit alleges 'racial gerrymandering' in Va.

RICHMOND, Va. – Virginia is one of several states where Democrats have gone to court to challenge redistricting plans drawn by Republicans seeking to keep control of the U.S. House of Representatives.

Marc Elias, an attorney for the National Democratic Redistricting Trust, represents two Virginia voters in a lawsuit that accuses the General Assembly of "racial gerrymandering" by improperly packing African-Americans into the state's only black-majority congressional district to make adjacent districts safer for GOP incumbents. A trial is set for this month.

"We're trying to remedy what we believe is an unconstitutional map drawn by the legislature," Elias said.

Democrats have also challenged GOP-drawn redistricting plans in other states – including Texas, Florida, Nevada and Missouri – but they are not alone in employing the tactic. Republicans also have asked courts to invalidate Democrat-produced remapping in a few states.

"It's not unusual at all to see whichever party feels aggrieved to try to correct what they think is unfair damage through the courts," said Justin Levitt, a law professor and redistricting expert at Loyola Law School in Los Angeles. "It's just that you're seeing more lawsuits by Democrats because Republicans were in control of more redistricting."

This isn't the first lawsuit challenging Virginia's reapportionment plan. State and federal courts previously dismissed lawsuits claiming the General Assembly violated a state constitutional provision by failing to complete redistricting until 2012, a year late.

Ethnic groups and others have also brought redistricting lawsuits in some states, Levitt said. So far in this redistricting cycle, he said, 208 lawsuits have been filed dealing with state legislative or congressional redistricting, or both. The National Conference of State Legislatures says 28 lawsuits remain active in nine states.

States redraw legislative and congressional districts after every decennial census to adjust for population shifts. The exercise creates the opportunity for gerrymandering – the manipulation of district boundaries, usually to achieve a partisan advantage.

The complaint on U.S. District Judge Robert Payne's docket for May 20 alleges that lawmakers made race the main criteria in redistricting, reaching into heavily black neighborhoods to pull voters into the black-majority 3rd Congressional District even if it meant splitting precincts and ignoring "communities of interest." The plaintiffs want Payne to postpone the June primaries and impose a new redistricting plan if the General Assembly fails to do so within a couple of weeks.

Elias declined to say how the plaintiffs, 3rd district residents Gloria Person-Huballah and James Farkas, became involved. Person-Huballah said she was "made aware of the opportunity" to become a plaintiff but declined to elaborate, and Farkas refused to comment.

State Attorney General Mark Herring is representing the defendants, the Virginia State Board of Elections, even though he opposed the redistricting plan as a Democratic member of the state Senate.

"In 2012, he voted against this redistricting plan, but this case is about what the law allows, not Attorney General Herring's policy preference, and these districts were lawfully drawn," Herring spokesman Michael Kelly said in an email.

The lawsuit claims that by increasing the 3rd district's black voting-age population from 53.1 percent to 56.3 percent, lawmakers improperly diluted minority influence in surrounding districts.

"Race was the predominant consideration in the creation of Congressional District 3," the lawsuit says. "No other factor explains the tortured shape of this district, its failure to comply with traditional districting principles or the high concentration of African-American voters in the district."

The elections board says in court papers that the plaintiffs cannot prove that race rather than politics was the main consideration. The board notes that the redistricting plan benefited GOP incumbents in the four districts surrounding Democratic U.S. Rep. Bobby Scott's 3rd district. There is no federal law that prohibits drawing maps that favor one party over another.

The district also received the required U.S. Justice Department approval under the Voting Rights Act, which the board says is a defense against the lawsuit.

An alternative redistricting plan filed by the plaintiffs would reduce black voting strength in the 3rd district to 50.2 percent. The board says in its pretrial brief that the alternative plan would shift a large number of black voters to a swing district currently represented by Republican U.S. Rep. Scott Rigell, making it a heavily Democratic district "in direct violation of the General Assembly's legitimate political, incumbency-protection and core-preservation goals."

The 3rd district stretches from Norfolk northwesterly into Richmond, with an arm jutting into heavily black Petersburg. The Newport News portion of the district is horseshoe-shaped. The plaintiffs describe the district's appearance as "a series of islands connected over land by other districts and over water by the broad James River."

A member of the steering committee of a Virginia redistricting reform organization agreed that the district looks peculiar.

"It is clear that you could design a district that complies with the Voting Rights Act that is not so horribly gerrymandered," said Terry Cooper of OneVirginia2021, which wants Virginia to turn redistricting over to a nonpartisan commission but takes no position on the lawsuit.

The 3rd has been a black-majority district since 1991. Scott, the state's only black congressman, was elected in 1992 and has easily won his nine re-election bids.

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